Henri Matisse, Portrait of Greta Moll (1908)

Oskar and Greta Moll were two German students of Henri Matisse. In 1908, they purchased a portrait of Greta painted by the Master himself (the Portrait). Later, having survived the Second World War but concerned of the impeding partition of Germany, they decided to move to Wales in 1946. In preparation for the move, Greta entrusted the Portrait to one of Oskar’s students, Gertrude Djamarani, who was to take it safely to Switzerland.

The plan went seriously awry when Djamarani unexpectedly sold the portrait to a gallery. The Painting was then bought and imported into the US by the now infamous Knoedler & Co. The Portrait changed hands several times over the years.  Finally in 1979, two years after Greta’s death, the National Gallery in London acquired the Portrait from the Alex Reid & Lefevre Gallery. Knowledge of the acquisition was apparently public.

Greta Moll was fully aware that her portrait had never made it to safety in Switzerland and so informed her daughter of this as early as 1954. She also mentioned the fact in public lectures and in an essay she published on the subject.  Greta’s family members even posed for pictures next to the Portrait at the National Gallery.

Yet, in 2014, Greta’s heirs approached the UK’s Spoliation Advisory Panel (SAP) to file a claim for the restitution of the Portrait. The SAP declined to hear the case as it had jurisdiction only on Holocaust or war-related spoliations where such claims arose on or before 1945 (the SAP’s remit covers losses occurring between 1933 and 1945).

In April 2015, the heirs filed a formal claim against the National Gallery before the New York District Court for the return of the Portrait. Jurisdiction for the state of New York was allegedly based on the National Gallery’s commercial activities in the United States (sales of catalogues and other items), as well as the existence of an organisation named The Friends of National Gallery Inc. based in New York, also named as a Respondent in the case.

The heirs’ argument rested on two legs.

First, the National Gallery could not claim immunity as an instrumentality of Great Britain under the US Foreign Sovereign Immunities Act. The Act provides immunity to foreign states and their instrumentalities with three exceptions: expropriation, ie property taken in violation of international law, sovereign acts injuring individuals or corporations and, finally, a waiver of sovereign immunity. The Court found that none of theses exceptions existed in the case and dismissed that part of the heirs’ argument.

Second, the heirs argued that the statute of limitation did not apply since correspondence and discussions with the National Gallery had stopped the clock on the limitation period. The exchange of correspondence went back to 2011. On 15 November 2012, a representative of the National Gallery, while refusing to entertain any return of the Portrait, had written:

‘I am and my colleagues are grateful for the manner in which this claim has been pursued. We have no doubt that our conclusion will be a great disappointment to the family and I hope that [the heirs] will accept that we have given serious consideration to their case and that a line may now be drawn under the claim.’

Was this tantamount to a refusal by the National Gallery? In New York, arguably not. The word refusal was never used. But was there room for interpretation? For the New York District Court judge, there was none. Despite the fact that the letter ended with a ‘quintessentially British statement’ (‘a line may now be drawn under the claim’), she was of the opinion that the National Gallery had concluded that the matter was firmly closed. As such, the heirs’ claim was time barred – another reason why their case was not allowed to proceed.

The Portrait of Greta Moll thus still hangs at the National Gallery in London. Safe, for now.